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UPON THE 



CONSTITUTIONAL RIGHTS 



AND 



PRIVILEGES 



OF 



HARVARD COlililiGE-, 

7 



AND UPON THE 



DONATIONS THAT HAVE BEEN MADE TO IT 



BY 






U. S. A, 
THIS COMMONWEALTH. 



PRINTED BY ORDER OF THE CONVENTION. 

Russell and Gardner, Printers. 

J821. 



Commonwealth ol ^lassac\w\setts. 



IN CONVENTION, December SO, 1820. 

Ordered, That Messrs. D. Webster, of Boston, Dear- 
born, of Roxbury, Wilde, of Newburyport, Tillinghast, of 
Wrentham, and Saltonstall, of Salem, be a Committee to in- 
quire into and report upon the Constitutional Rights and Privi- 
leges of the Corporation of Harvard College ; and to report, 
also, an account of the donations which have been made to that 
Corporation by the Commonwealth.. 

Attest, 

BENJAMIN POLLARD, Secretary. 



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Commonwealth of Massachusetts. 



IN CONVENTION, Jan. 4, 1821. 
THE Committee appointed to inquire into and report upon 
the Constitutional Rights and Privileges of the Corporation of 
Harvard College ; and to report also, an account of the dona- 
tions which have been made to that Corporation by the Com- 
monwealth ; ask leave now to 

REPORT : 

That, in the year one thousand six hundred and 
thirty six, the General Court of the Colony agreed 
to appropriate ,£400 towards a School, or College. 
In the year following, it was ordered that an Edifice 
should be erected for that purpose at Newton, and 
twelve gentlemen were apppointed a Committee to 
have charge of the subject. In 1638, the name of 
Newton was changed to that of Cambridge ; and it 
was ordered, that the College, to be erected at Cam- 
bridge, should be called Harvard College, in 
honor of the Rev. John Harvard, of Charlestown, 
who had contributed liberally to the fund. And in 
1640, the Rev. Henry Dunster was appointed first 
President. At this time, the property, appropri- 
ated to the support of the College, by the General 
Court, had not been vested in any persons whatever. 
It remained the property of the Colony, and was 
managed by a Committee of the General Court, or by 
the Magistrates and Elders, by authority of the Gen- 
eral Court. This being found an inconvenient mode 
of administering the fund, an act was passed, in 



1642, by which the Governor, Deputy Governor, 
and Magistrates, and the Teaching Elders, of the 
the Towns of Cambridge, Watertown, Charlestown, 
Boston, Roxbury, and Dorchester, together with the 
President of the College, were constituted a Board of 
Overseers, with power to make orders, statutes, and 
constitutions, for the rule and government of the Col- 
lege, and to manage and dispose of its lands and 
revenues. The fund remained in this situation until 
the year 1650, when the General Court, on the ap- 
plication of the President, granted a Charter, by 
which seven persons, to wit, the President of the 
College and the Treasurer, ex officio, and five indi- 
viduals, by name, were constituted a Corporation, 
by the name of the "President and Fellows of 
Harvard College," to have perpetual succession, 
and with power to fill vacancies, occurring in their 
own body, by their own election, with the consent of 
the Overseers. All powers of Government, the whole 
management and control of the property and funds, 
and direction and instruction of the Students, appear 
by this charter, to have been conferred on the Presi- 
dent and Fellows; with a provision, however, that 
the acts of the Corporation should not take effect un- 
til the approbation or assent of the Overseers was 
obtained. 

It appears soon to have been found, that a great 
inconvenience arose from holding all orders, by- 
laws and acts of the Corporation in suspense, until 
the pleasure of the Overseers could be known ; and 
on that account, on the application of the Overseers, 
a Supplemental Charter was granted, in 1657, 
by which all orders, by-laws and other acts of the 
President and Fellows were to have immediate force 



and effect; subject, however, to be reversed, or re- 
scinded by the Overseers, if they should not approve 
them. By these Charters, all the property, ap- 
pertaining to the College, became vested in the 
President and Fellows, for the purposes of the In- 
stitution ; and all powers of superintendence and 
control were in like manner conferred on them, sub- 
ject, as before mentioned, to the approbation or dis- 
approbation of the Overseers. The Government of 
the Colony was the Founder of this Institution ; not 
in consequence of having granted the Charter, but in 
consequence of having made the first endowment. 
As Founder, it was entirely competent to the Gov- 
ernment to prescribe the terms of the Charter, to 
grant the property, subject to such limitations as it 
saw fit, and to vest the power of visitation and con- 
trol, wherever it judged most expedient. This 
power, the Government thought proper to vest, to 
the extent, and in the manner before mentioned, in 
the Board of Overseers ; and subsequent donors had 
a right, of course, to expect, that donations, made 
by them, would be managed, and applied to their 
intended objects, by the College Government, thus 
constituted, without substantial variation. Between 
the year 1657, (the date of the Supplemental Char- 
ter) and the time of the Provincial Charter of Wil- 
liam and Mary, sundry alterations were proposed in 
the Charter of the College ; such as, among other 
things, to give the College Government civil juris- 
diction, in certain cases, after the manner adopted in 
other Institutions. None of these alterations, how- 
ever, took place. By the Provincial Charter, in 
1691, the Crown of England confirmed to the Col- 
lege, as well as to other bodies, corporate and poli- 



6 

tic, all its property, powers, rights, privileges and 
immunities. At subsequent periods, attempts were 
again made, for further alterations of the Charter, 
but without success. 

By the present Constitution of the Common- 
wealth, adopted in 1780, it is well known, all the 
powers, authorities, rights, liberties, and immunities 
of the College were expressly confirmed ; and all 
gifts, devises and legacies, made or given to it, de- 
clared to be forever bound and applied to their re- 
spective purposes, according to the will of the do- 
nors. And, inasmuch as the Revolution, and the 
establishment of a New Government, had made it 
necessary to declare who should be deemed succes- 
sors to those persons, who, under the old Govern- 
ment had been, ex officio, members of the Board of 
Overseers, it was declared, that the Governor, Lieut. 
Governor, Council and Senate, should be such suc- 
cessors ; and that they, with the President of the 
College, and the Ministers of the Congregational 
Churches, in the Towns of Cambridge, Watertown, 
Chariest own, Boston, Roxbury and Dorchester, 
should constitute, the Board of Overseers ; with a 
provision, that the Legislature might, nevertheless, 
for the advantage of the College, and the interest of 
Letters, make alterations in its Government, in the 
same manner, as they might have been made by the 
Provincial Legislature. In the Constitution of the 
Corporation no change has been made, since the date 
of the first charter ; but within the last ten years, 
several laws have passed, having for their object, 
modifications of the Constitution of the Board of 
Overseers. Seme of these laws have passed with 
the assent, and on the application of the Corpora- 



tion and Board of Overseers ; and one of them has 
passed without the previous consent of either. The 
last Law on this subject is the Act of February, 
1814, which passed with an express provision, that 
its validity should depend on the assent of the Board 
of Overseers, and of the Corporation. Both of these 
bodies assented to, and accepted this act, and the 
present actual government of the College is conforma- 
ble to its provisions. It may be useful to state here, 
how the Government of the College is at present 
formed and constituted, under this law. 

In the first place then, the Corporation, as before 
mentioned, exists in the form prescribed by the first 
charter. 

It consists of seven members ; it invests the reve- 
nues, protects the property, and has the immediate 
charge of the interests of the College ; and it ap- 
points Professors, Tutors, and other officers ; sub- 
ject, however, in all these appointments, to the 
approbation or disapprobation of the Board of Over- 
seers. The Board of Overseers is composed of the 
Governor, Lieut. Governor, Council, Senate, Speak- 
er of the House of Representatives, and President 
of the College, together with fifteen Ministers of 
Congregational Churches, and fifteen Laymen, all 
inhabitants within this State, elected, and to be 
elected, as vacancies occur, by the Board itself. If 
the contemplated arrangement, as to the number of 
Senators and Councillors, hereafter to be chosen in 
the State, shall take place, this Board will consist 
of seventy seven members ; of whom forty six will 
be such persons as shall be annually chosen by the 
people, into the offices of Governor, Lieut. Governor, 
Councillors, Senators, and Speaker of the House of 



8 

Representatives ; and thirty other persons, such as 
these officers, being themselves a majority of the 
Board, shall, with the other members, see fit, from 
time, to time, to elect, to fill the vacancies which 
may occur. 

Such is the existing Constitution of the Govern - 
ment of this Institution ; and, with one exception, 
hereafter to be mentioned, the Committee are of 
opinion, that it is a well contrived and useful form 
of government. The Corporation consists of but few 
persons ; they can, therefore, assemble frequently, 
and with facility, for the transaction of business, 
either regular or occasional. The Board of Over- 
seers, having a negative on the more important acts 
of the Corporation, is a large and popular body, a 
great majority of its members being such as are an- 
nually elected to places of the highest trust in the 
Government by the people themselves. A more ef- 
fectual control, over the proceedings of the Corpora- 
tion, cannot be desired. 

Indeed if a new government were now to be fram- 
ed, for an University, independent of all consider- 
ations of existing rights and privileges, the Committee 
do not know that a better system could probably be 
devised. The history and present state of the insti- 
tution, speak the most decisively, as well on the plan 
of its government, as on its administration. As to 
the care and management of the funds, it is believed 
to have been cautious, and exact, in a very high de- 
gree. No delinquency, to the amount of a single 
shilling, is known to have existed in any member 
of the corporation, or any of their agents or servants, 
from the time of the first donation, in sixteen hun 
dred and thirty six, to the present moment. 



9 

How far this Government of the University has 
been found competent to conduct its literary con- 
cerns, and to what respectability, and distinction^ 
among the institutions of the country, it has raised 
it, neither the Members of this Convention, nor the 
citizens of this Commonwealth, nor the people of the 
United States, need be informed* 

The exception, before alluded to, is, that, by 
which the Clergymen, composing part of the Board 
of Overseers, are to be elected from Christians of a 
particular denomination* However expedient, or 
indeed however necessary, this might have been 
originally, the Committee are of opinion, that no in- 
jury would arise, from removing the limitation^ 
and that such a measure would be satisfactory. It 
seems to have been taken for granted, that the Le- 
gislature, with the consent of the Corporation and 
Overseers, had power to modify the Constitution of 
the Board of Overseers, in the manner prescribed by 
the Act of 1814. In the opinion of the Committee, 
however, modifications of the Government of this 
most important Institution should not rest merely on 
the authority of Legislative acts. Those who form- 
ed the Constitution, in 1780, appear to have deemed 
the subject of such high importance as to require 
Constitutional Provisions, and the Committee are 
of opinion, that that precedent is fit to be follow- 
ed. They have, therefore, deemed it proper to re- 
commend to the Convention to propose an article to 
the Constitution, removing the restriction before men- 
tioned, and confirming, in all other respects, the ex- 
isting Constitution of the College. Having commu- 
nicated this opinion to the Corporation, and to the 
Board of Overseers, both these bodies have signified 
2 



10 

their consent, to such an article ; as may be seen by 
their votes, certified copies of which, accompany 
this Report. 

The Committee have no further remarks to make 
on the Constitutional rights and privileges of the 
College, except, that like all other Charities, it is 
under the dominion, and control of the Law. All 
officers and servants of any Institutions, whether es- 
tablished for the purpose of Religion, or Learning, 
or the relief of the indigent, are answerable for a 
strict and faithful execution of their trust. And any 
individual, who may be injured, has his remedy, as 
promptly as in other cases of injury. Or if any 
abuse, or perversion of the funds, be known or sus- 
pected, a full account may be called for, and ample 
justice administered, in the tribunals of the country. 
The Committee make this remark, in order that there 
need exist no jealousy in the public towards any 
charitable Institutions in the State, arising from an 
apprehension that there is, or can be, any immunity 
in such Institutions, for mal- administration, any con- 
cealment of their transactions, any unseen or un- 
known mismanagement of their property, or any ex- 
emption from a full and perfect legal responsibility 
for all their conduct. 

The Committee now proceed to the second object 
of their appointment ; which was to obtain an account 
of the donations which have been made to the Col- 
lege, by the Commonwealth ; and although not with- 
in the letter of their instructions, the Committee 
have thought fit to inquire into those other aids, be- 
sides immediate donations, which the College has 
received from the State ; and also into the propor- 
tion which the public grants bear to private and in- 
dividual donations. 



11 

The Committee, in making this inquiry, have 
conferred with the President, the Treasurer, and 
another member of the Corporation, as a Committee 
of that Board, attending at the request of the Com- 
mittee ; and from these gentlemen, have received all 
the information which they, have requested. 

As has been already observed, the Colony gave 
£400, for the first endowment of the Institution. In 
1640, it granted to the College the right of keeping 
a Ferry over Charles River. For many years this 
privilege was of little importance, not yielding a net 
income of more than twelve pounds annually ; it 
gradually increased, however, and was of so much 
consequence, when Charlestown Bridge was erected, 
in 1786, that the proprietors of that bridge became 
bound, in their charter, to pay the College £200, 
annually, for the loss of their ferry. Two other 
bridges, more recently erected over the same river, 
for a similar reason, pay to the College, each the 
sum of one hundred pounds annually. 

In addition to this grant of the ferry, which, as 
has been before observed, was of little importance, 
in early times, the General Court of the Colony was 
in the practice of making annual grants, in aid of 
the College, and to assist in the payment of the sal- 
aries of the President, Professors, and Tutors. This 
practice was long continued, and did not entirely 
cease until after the revolution. These sums being 
given to maintain the College from year to year, 
were of course appropriated and exhausted as fast 
as they were received, and no fund, consequently, 
was ever produced by them. 

Before the Revolution, certain lands, in Maine, 
were given to the College by the General Court, from 



12 

Which it has realized eight thousand dollars, and 
does not expect to receive above seven thousand more. 
Massachusetts Hall was built by the Province, in 
1723 5 Hollis Hall, in 1763 ; and on the burning 
of Harvard Hall, while in possession of the General 
Court, in 1765, it was rebuilt at the public expense. 
Hoi worthy Hall, and Stoughton Hall, were built 
principally by the proceeds of Lotteries, authorized 
by the Legislature, but managed and conducted at 
the expense and risk of the College. In 1814, 
on the petition of the College, the Legislature 
granted it ten thousand dollars a year, for ten years, 
out of the proceeds of the tax on Banks. Three 
objects were intended to be answered by the applica- 
tion for, and reception of, this liberal and munificent 
grant. The College had undertaken to build Uni- 
versity Hall, an edifice which it deemed necessary 
and essential, but the cost of which pressed hard 
upon its funds. The first object of the grant was, 
to pay the expense of this building. It was desira- 
ble, also, that there should be a building erected for 
the use of the Medical School ; and, lastly, a fund 
was wanted for the charitable support of necessitous 
young men of merit, the sons of poor parents, who, 
without the aid of charity, could not go through a 
course of education ; and in whose possession of the 
means of knowledge, the State supposed itself to 
have an interest. University Hall and the Medical 
College have accordingly been built ; and that part 
of the annual grant (one quarter of the whole) which 
was destined to purposes of charity has been so ap- 
plied. 

Six years, of the ten, have uow expired, and 
University Hall having been built at an expense 



13 

of sixty five thousand dollars, and the Medical Col- 
lege at an expense of about twenty thousand dollars, 
and one quarter part of the grant, being, as before 
mentioned, appropriated to the use of necessitous 
scholars, when the four remaining years shall have 
expired, the College will have invested and applied 
the whole amount of the grant, with ten thousand 
dollars of its own funds, to the purposes for which 
the grant was made. The Committee have inquired 
particularly into the manner in which this charity 
is distributed, and they think it wise, impartial and 
efficacious. In the first place, it is given to none but 
those who apply for it, and who clearly shew, by 
proofs from their Instructors, their Ministers, the Se- 
lectmen of their town, or otherwise, that they and 
their friends are necessitous, and unable to supply 
the means of education. In the next place, it is re- 
quired that they should be persons of fair character 
and good behaviour ; and when it is ascertained that 
the applicant possesses a fair character, and that he 
is necessitous, he is admitted to partake in the bene- 
fit. The scale of merit, kept by the Instructors of 
the Classes, is then referred to, and among those 
who are thus necessitous and of fair character, such 
as give most proof of talent and promise receive most; 
those who give less, receive less. It may be added, 
that this charity is confined to young men of this State. 
The Committee do not know how a plan could be 
devised more likely to give effect to the intention of 
the Legislature. This donation, by the Act of 1814, 
is the only direct grant of money, by the State, since 
the year 1786. 

In order to compare the amount of donations 
made by the State, with that of donations by indi- 



14 

viduals, the Committee have proceeded to inquire 
into the origin of the College funds, generally ; and 
have received on this subject, also, from the corpora- 
tion, all the information desired. 

The amount of all the personal property holden 
by the College, and yielding an income, does not 
exceed three hundred thousand dollars. Of this, 
more than two hundred thousand dollars consist of 
donations made by individuals to specific and par- 
ticular objects ; so that over this part of the funds, 
the Corporation has no other control whatever, than 
to apply the annual proceeds thereof according to 
the will of the donor. 

A munificent individual, for instance, chooses to 
establish a Professorship, in any branch of litera- 
ture, and for this purpose makes a donation to the 
College, and in his deed, or other instrument of gift, 
limits the application of the proceeds of the fund to 
this particular object. In such case the Corpora- 
tion has nothing to do, but to see the fund properly 
invested and secured, and that a fit person be ap- 
pointed Professor, to receive the income of it for his 
support. So, of funds given to aid poor scholars, 
to augment the library, and other similar objects. 

Of the remainder of the personal property, a 
considerable portion, viz. about eighteen thousand 
dollars, arises from private donations, for objects not 
immediately connected with the College; such as 
the maintenance of missionaries, and in one in- 
stance, of a grammar school. The general unap- 
propriated fund of the College, vested in personal 
property, yielding an income, deducting some debts 
now chargeable upon it, is fifty five thousand dollars. 
The real estates of the College, except the public 



15 

edifices before mentioned, are derived, principally, 
from the donations of individuals ; but partly from 
purchases made from the College funds. The whole 
income of its real estates, including what it receives 
from the proprietors of the several bridges, amounts 
to five thousand dollars annually ; of which one thou- 
sand is appropriated to specific objects by the do- 
nors. The sums received from students, as rents 
for the apartments occupied by them, are usually 
absorbed in the repairs of the various College build- 
ings. The income of that part of the personal 
property, which is not appropriated to specific ob- 
jects, and of that part of the real estate, in like 
manner, not appropriated to specific objects, consti- 
tutes the general disposable income of the College, 
applicable to its general purposes ; such as paying 
the Instructors and Officers, defraying occasional 
expenses, and making up, in some cases, a deficien- 
cy in a particular specific donation, so that the 
object of the donor may be effected, and the public 
enabled to receive the benefit of his gift. 

The amount of this general disposable income 
still falls so far short of its object, that a large sum 
is necessarily raised by Tuition fees. The whole 
annual expenditure of the College, including all the 
general and specific objects, is, at this time, about 
thirty thousand dollars, of which, seventeen thousand 
are paid by the proceeds of College Funds, general 
and specific, and the residue by tuition fees, and 
other charges on the students. The President, 
twenty Professors in the several departments of Sci- 
ence, Literature, Divinity, Law and ?* ''jicine ; six 
Tutors, the Librarian, Steward, and other officers, 
are paid out of these receipts ; as also the ex- 



LIBRARY OF CONGRESS 



]g 029 908 943 5 

pense of Books for the library, apparatus for the phi- 
losophical and chemical departments, and other daily 
expences incident to such an Institution. The ac- 
counts of the Treasurer, of the receipt and disburse- 
ment of the monies of the Institution, are, from time 
to time, audited by a Committee of the Corpora- 
tion, and also by a Committee of the Board of 
Overseers. 

From this account of the state of the funds, it 
is evident that the establishment of the Institution, 
on the present enlarged plan, is not, and cannot be, 
kept up, but by the help of tuition fees. And dona- 
tions and additions to the general and disposable 
funds of the College, would be highly useful to the 
public, as they would diminish the necessary ex- 
pense of education. 

In pursuance of the opinion 'formed by the Com- 
mittee on that part of the subject committed to them, 
which respects the Constitutional Rights and Privi- 
leges of the College, they recommend the adoption 
of the following Resolution, viz. : 

1 Resolved, That it is proper to amend the 

2 Constitution, by providing, that the rights and 

3 privileges of the President and Fellows of Har- 

4 vard College, and the Charter and Constitution 

5 thereof, and of the Board of Overseers as at 

6 present established by law, be confirmed ; with 

7 this further provision, viz. : That the Board 

8 of Overseers, in the election of Mir'^cers of 

9 Churches to be members of said Board, shall 

10 not be confined to Ministers of Churches of any 

11 parti lenomination of Christians. 

For the Committee, 

13. WEBSTER. 



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